State v. Sharpe

In State v. Sharpe (2008) 174 Ohio App.3d 498 882 N.E.2d 960, the defendant's girlfriend called police to file a domestic violence complaint; thereafter, police interviewed the girlfriend and obtained an arrest warrant. Ninety minutes later, the defendant was at another location with a gun threatening to kill himself. Ninety minutes after that, the defendant was seen entering his residence through a rear window. (Sharpe, supra, 882 N.E.2d at pp. 964-965.) Police surrounded the residence for two to three hours waiting for the defendant to come out; when he did, police arrested him and performed a protective sweep of the residence where they found approximately two and a half pounds of marijuana in plain view. Defendant refused to consent to a search of the residence. Officers immediately obtained and executed a search warrant. They seized the marijuana they had seen, along with over 100 grams of cocaine and a loaded .45-caliber handgun. The defendant was charged, inter alia, with two counts of drug possession and one count of being a convicted felon in possession of a firearm. Defendant filed several motions to suppress; in his last motion, he contended that the protective sweep was illegal and tainted the facts in the affidavit supporting the search warrant request. The trial court denied the motion. (Id. at pp. 965-966.) The Ohio Court of Appeal reversed. The court held the sweep was not constitutional since the police had no idea whether anyone was in the house to present "a risk of danger from the gun's use" (id. at p. 971) and the gun did not play "any part in the domestic violence offense the defendant allegedly committed." (Id. at p. 972.)